New York State Courts Remain Closed to New Nonessential Actions

. . . [A]ny specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.

By further Executive Order issued April 7, 2020 (No. 202.14), the Governor continued the tolling of all New York statutes of limitation “until May 7, 2020.” On the evening of May 7, 2020, the Governor issued another executive order (No. 202.28) extending the tolling of New York statutes of limitation “until June 6, 2020.”

New York State Courts Are Closed to New Nonessential Case Filings Until Further Notice

On March 22, 2020, two days after Governor Cuomo issued his executive order tolling New York statutes of limitation, New York Chief Administrative Judge Lawrence K. Marks issued an administrative order (AO/3/2020) prohibiting litigants from making court filings in any nonessential matters, whether new or pending:

. . . [C]onsistent with the Governor of New York’s recent executive order suspending statutes of limitation in legal matters, I direct that, effective immediately and until further order, no papers shall be accepted for filing by a county clerk or a court in any matter of a type not included on the list of essential matters attached as Exh. A. This directive applies to both paper and electronic filings.

The Chief Administrative Judge’s list of essential matters consists of especially urgent applications and submissions in criminal matters, family court, Mental Hygiene Law, guardianship, orders of protection, Election Law, extreme risk protection orders, and civil/housing matters, with a catch-all for “any other matter that the court deems essential.”¹ Commercial matters, such as suits for breach of contract or business torts, were and are still not deemed “essential matters,” regardless of the amount in dispute.

Since the March 20 administrative order, Chief Judge Janet DiFiore and Chief Administrative Judge Marks issued several additional administrative orders designed to promote the use of virtual conferences and resume activity in pending nonessential cases. Most recently, in Administrative Order AO/87/20, issued May 1, 2020, the Chief Administrative Judge directed that most kinds of electronic court filings can resume in pending nonessential cases.

None of these steps, however, apply to the commencement of new nonessential cases. By administrative order issued on April 8, 2020 (AO/85/20), the Chief Administrative Judge reaffirmed that “[n]o new nonessential matters may be filed until further notice.” This ban remains in place as of the date of this alert. As a result, the New York state courts are still closed to litigants seeking to commence new nonessential actions.

Federal Courts in New York Remain Open

New York’s ban on commencing new nonessential actions in state courts prevents potential plaintiffs with commercial claims from commencing a lawsuit in the near term, or from obtaining immediate relief with respect to such claims, particularly if they wish to commence a new action and simultaneously seek emergency relief, such as a temporary restraining order or preliminary injunction. In this environment, such potential plaintiffs should explore the availability of other courts or jurisdictions in which to pursue their claims.

In this vein, it is worth noting that the federal district courts in New York are still accepting new case filings, even as the courthouses may be fully or partially closed and many court personnel are working remotely. Until such time as the New York state courts resume accepting new case filings, potential plaintiffs should consider whether they meet federal jurisdictional requirements and can seek relief in the federal courts.

^{1  On May 7, the New York Law Journal reported that, due to uncertainty about whether Governor Cuomo’s tolling order applies to the “look-back window” under the Child Victims Act, which was set to expire in August, a state court spokesman announced that the New York courts will make an accommodation to allow new cases to be filed under the Child Victims Act before the August deadline. See Ryan Tarinelli, “Child Victims Actions May Be Filed Before Window Closes, Despite New Suit Ban,” N.Y.L.J., May 7, 2020, at 1.}